Opinion
A167873
08-14-2024
THE PEOPLE, Plaintiff and Respondent, v. RODERICK MAURICE SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. 02003305323)
BURNS, J.
In 2020, Roderick Maurice Smith pled no contest to being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1))and, pursuant to the parties' plea agreement, was placed on probation for a term of three years. At that time, the law generally allowed a court to place a defendant convicted of a felony on probation for up to five years or for the maximum possible sentence term (whichever was longer). (Former § 1203.1, subd. (a), as amended by Stats. 2010, ch. 178, § 75.) Effective January 1, 2021, Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill 1950) changed the maximum probationary period in most cases to two years. (§ 1203.1, subds. (a), (m), as amended by Stats. 2020, ch. 328, § 2.) Since then, our Supreme Court has held that Assembly Bill 1950 applies retroactively to cases not yet final and further indicated that the length of a probationary term imposed before the new law went into effect is reduced while the remainder of a plea bargain stays in place. (People v. Prudholme (2023) 14 Cal.5th 961, 963, 966, 969-970 (Prudholme).)
Undesignated statutory references are to the Penal Code.
There are statutory exceptions to the two-year limit-originally found in former section 1203.1, subdivision (m) (Stats. 2020, ch. 328, § 2), which has since been redesignated as subdivision (1). (People v. Kite (2023) 87 Cal.App.5th 986, 991, fn. 2; Assem. Bill No. 177 (2021-2022 Reg. Sess.), Stats. 2021, ch. 257, § 22.) Hereafter, we cite the current version of the statute.
Smith appeals after the trial court, in 2023, rejected his argument that, after the ameliorative amendments to section 1203.1, subdivision (a), it lacked jurisdiction to adjudicate a violation committed after the second year of his probation. We agree with Smith that the trial court exceeded its authority and reverse.
Background
A.
Smith was charged with being a felon in possession of a firearm (§ 29800, subd. (a)(1); count one); unlawfully carrying a concealed firearm in a vehicle (§ 25400, subd. (a)(1); count two); carrying a loaded and unregistered firearm in public (§ 25850, subds. (a) &(c)(6); count three); and unlawfully possessing ammunition (§ 30305, subd. (a)(1); count four).
On August 4, 2020, he pled no contest to count one in exchange for, among other things, a three-year term of probation and dismissal of the remaining counts. The court suspended imposition of sentence and, pursuant to the negotiated plea agreement, placed Smith on probation for three years- conditioned on Smith serving 120 days in county jail "at halftime." However, in lieu of 120 days in jail, the court allowed Smith (on the parties' stipulation) to complete an alternative work program with the Contra Costa County Sheriff's Department. On the prosecutor's motion, the trial court dismissed the remaining charges.
B.
More than two years later, in November 2022, the Contra Costa County Probation Department notified the court that Smith had violated the terms of his probation by not completing the work program. In particular, the notice stated Smith had last contacted his caseworker on August 8, 2022 and had not worked in the program since September 25, 2022-after working only 14 of 40 days in his "second contract." The notice further stated that 44 days remained of Smith's "original sentence," that Smith's start in the work program had been delayed because the San Pablo location where he was due to begin his "first contract" never reopened after the COVID-19 pandemic, and that he thereafter obtained a full-time job and only had weekends off. He was scheduled by the Sheriff's Department to work a "second contract" on weekends more than a year later (starting July 2, 2022.) After completing 14 days on that contract, Smith moved to Fresno, which would not accept a transfer.
In the interim-between Smith's 2020 sentencing hearing and the notice of violation-Assembly Bill 1950 had amended section 1203.1, effective January 1, 2021, to generally limit the term of felony probation to two years. (Stats. 2020, ch. 328, § 2.)
Nonetheless, on November 29, 2022, the trial court summarily revoked Smith's probation and issued a bench warrant. At the formal revocation hearing, on April 28, 2023, defense counsel stated that Smith had moved to Fresno in September after his son was born, and that Smith was working a full-time job to support the child. This meant that he had to travel to Martinez and book hotels to complete his work program. The trial court found that Smith failed to comply with the custody term of his original probation order, formally revoked and reinstated Smith's probation, and ordered him remanded to county jail to serve the remainder of his 120-day custodial term.
About a week later, Smith filed a motion to modify the order, in which he asked to serve the remainder of his custody time from Fresno in an electronic monitoring program-to better support his infant son. On May 10, 2023, the trial court denied Smith's motion and ordered probation to terminate unsuccessfully on Smith's release. The trial court also rejected Smith's counsel's argument-raised for the first time at the May 10 hearing-that the court lacked jurisdiction because Smith's probation term had long since expired under the changes made by Assembly Bill 1950. The court explained: "I do not find that the legislature intended to allow people to not fulfill the original conditions of their probation, specifically a custodial sentence by simply being able to arrange through [the Sheriff's Department] to set a later and later time for completing that sentence based on convenience."
Discussion
A.
We agree with Smith that the trial court had no jurisdiction to address a violation occurring after the term of his probation expired (on August 4, 2022), pursuant to Assembly Bill 1950. The trial court erred in ruling otherwise.
Smith did not petition for a writ of mandate or a writ of prohibition.
1.
At the time of Smith's original sentencing hearing (August 4, 2020), former section 1203.1, subdivision (a), allowed courts to impose felony probation "for a period of time not exceeding the maximum possible term of the sentence," except "where the maximum possible term of the sentence [was] five years or less," in which case probation could "continue for not over five years." (Former § 1203.1, subd. (a), as amended by Stats. 2010, ch. 178, § 75; People v. Forester (2022) 78 Cal.App.5th 447, 451-452.) After being amended by Assembly Bill 1950, section 1203.1, subdivision (a), now generally limits the maximum term of felony probation to two years, with exceptions that the parties agree do not apply here. (§ 1203.1, subds. (a), (1), 29800, subd. (a)(1); Prudholme, supra, 14 Cal.5th at p. 966.)
It is now settled that Assembly Bill 1950 applies retroactively to nonfinal cases (Prudholme, supra, 14 Cal.5th at pp. 963, 966) and that it is proper to "simply reduce the length of probation to that now specified under the current law while leaving the remainder of the plea bargain intact." (Id. at pp. 969970, 979.)
2.
In the wake of Prudholme, the parties now agree that Assembly Bill 1950 applies retroactively to cases like Smith's and that the term of his probation expired by operation of law on August 4, 2022. (See Prudholme, supra, 14 Cal.5th at pp. 963, 966-970, 979; People v. Esquivel (2021) 11 Cal.5th 671, 673 ["case in which a defendant is placed on probation with imposition of sentence suspended is not yet final for [legislative retroactivity] purpose[s] if the defendant may still timely obtain direct review of an order revoking probation and imposing sentence"].) It is likewise undisputed that the trial court incorrectly followed a line of authority involving probation violations and summary revocations that occurred before Assembly Bill 1950's effective date. (See People v. Arreguin (2022) 79 Cal.App.5th 787, 797.) Nonetheless, the People argue that Smith is estopped from challenging the trial court's jurisdiction. (See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19 [ruling that is" 'correct in law'" should not be disturbed on appeal merely because it was given for wrong reason-if it can upheld on an alternate basis].) They are wrong.
The People rely on People v. Ford (2015) 61 Cal.4th 282 (Ford). In Ford, the defendant was placed on probation pursuant to a plea agreement that required him to pay victim restitution. (Id. at p. 285.) When the probation officer determined (within the probationary term) the appropriate restitutionary amount, the defendant requested a hearing. That hearing was continued many times-at times on the defendant's own request and always with his consent. (Ibid.) Ultimately, the restitution hearing concluded a week after the defendant's probationary term expired. At that point, he contested the court's jurisdiction to order restitution. (Id. at pp. 285-286.)
Our Supreme Court did not decide the scope of a trial court's authority to fix restitution after a probation term has expired. (Ford, supra, 61 Cal.4th at pp. 284-285, 287.) Instead, recognizing "that the expiration of a probationary period does not terminate a court's fundamental jurisdiction" and that an award after that time would at most be an act "in excess of jurisdiction," the Ford court declared that a defendant "may be precluded from seeking to set aside such a ruling because of waiver, estoppel, or the passage of time." (Id. at p. 287.) "Whether the party should be estopped depends on a weighing of equities in the particular case, the effect of estoppel on the functioning of the courts, and considerations of public policy." (Ibid.) In Ford, because the defendant's own requests played a role in delaying the hearing beyond the probationary term and he did not object to any continuance, he was estopped from challenging the court's authority to make the restitutionary award on appeal. (Id. at pp. 288-289.)
The People argue that Smith is similarly estopped to challenge the trial court's jurisdiction because "[he] primarily caused the delays resulting in alleged loss of jurisdiction and consented to the trial court's jurisdiction at the April 23, 2023 revocation hearing." We agree with the People that the trial court retained fundamental jurisdiction over the parties and subject matter after August 4, 2022. (Ford, supra, 61 Cal.4th at p. 287.) But we are not persuaded that Smith is estopped from arguing that the trial court exceeded its authority.
True, Smith failed to raise the jurisdictional point at the first (April 2023) hearing after the summary revocation. However, the People are wrong to suggest that this or any other of Smith's actions caused the delays that led to the loss of jurisdiction.
The rationale underlying Ford (and the other cases cited by the People) is that a defendant cannot benefit from their own conduct that causes judicial action, which would have otherwise been timely, to become untimely. (See Cowan v. Superior Court (1996) 14 Cal.4th 367, 383; Ford, supra, 61 Cal.4th at pp. 285286, 288-289; In re Bakke (1986) 42 Cal.3d 84, 86, 89-90 &fn. 5 (Bakke) [application for stay of execution of jail term pending appeal, made by the defendant before expiration of the probationary term, "contemplates that the proceedings related to that term will resume at a later time" and estops defendant from complaining that term had expired]; In re Griffin (1967) 67 Cal.2d 343, 345, 348-349 (Griffin) [probationer estopped to challenge jurisdiction when he requested, at time before probation term expired, continuance of revocation hearing beyond term's expiration].)
Here, unlike in Griffin, Ford, and Bakke, Smith's probationary term (as amended by Assembly Bill 1950) had already expired before the April 2023 hearing and before he stopped work on the second work program contract in September 2022 (apparently because of his move to Fresno). By September 2022, Assembly Bill 1950 had already been in effect for more than one year. Accordingly, we fail to see how Smith can be held responsible for the loss of jurisdiction. (See Cowan v. Superior Court, supra, 14 Cal.4th at p. 383 [estoppel rationale "would not apply to a situation . . . where the time limit had already expired at the time of the purported forfeiture"]; Kuhnel v. Appellate Division of Superior Court (2022) 75 Cal.App.5th 726, 732, review granted, June 1, 2022, S274000 ["delays Kuhnel sought or agreed to took place after [date probation term ended] and therefore did not cause the alleged loss of jurisdiction"], second italics added.)
The People also assert that Smith should be estopped from challenging jurisdiction because it was his conduct-getting a full-time job and moving to Fresno-that delayed his completion of the work program. The record before us does not support the claim. Smith enrolled in the work alternative program in 2020. Before August 4, 2022, it appears that the COVID-19 pandemic presented a significant delay in Smith's commencement of the work program-as the site where he had been scheduled to work never reopened. As noted above, his move to Fresno occurred after the end of the probationary term. And although the precise time when Smith became employed full-time is unclear, we know that the Sheriff's Department learned of that development in April 2021 and that Smith was scheduled to begin a weekend contract on July 2, 2022. Without more, the equities do not weigh in favor of holding Smith responsible for the 16 months it took to arrange a weekend work contract. (See Ford, supra, 61 Cal.4th at p. 287.) There is no basis for deeming Smith estopped to challenge the trial court's jurisdiction.
Once the term of probation ends, a court has no power to revoke or modify its probation order. (§ 1203.3, subd. (a) ["court has the authority at any time during the term of probation to revoke, modify, or change its order"]; People v. Chavez (2018) 4 Cal.5th 771, 782-783.) In this case, Smith's probation term expired by operation of law on August 4, 2022. ( Prudholme, supra, 14 Cal.5th at pp. 963, 966-970, 979; People v. Esquivel, supra, 11 Cal.5th at p. 673.) Accordingly, we must reverse.
Disposition
The May 10 and April 28, 2023 orders are vacated. The matter is remanded with instructions to the trial court to enter a new order (nunc pro tunc) that modifies Smith's original term of probation to two years (§ 1203.1, subd. (a)), reinstates probation, and discharges him from probation as of August 4, 2022. The Contra Costa County Probation Department shall be notified of the modification.
WE CONCUR: JACKSON, P. J., CHOU, J.